Pace Environmental Law Review Volume 23 Issue 3 Special Edition 2006 Article 6 The Intersection of Environmental and Land Use Law September 2006 In Praise of Parochialism: The Advent of Local Environmental Law John R. Nolon Follow this and additional works at: http://digitalcommons.pace.edu/pelr Recommended Citation John R. Nolon, In Praise of Parochialism: The Advent of Local Environmental Law, 23 Pace Envtl. L. Rev. 705 (2006) Available at: http://digitalcommons.pace.edu/pelr/vol23/iss3/6 This Article is brought to you for free and open access by the School of Law at DigitalCommons@Pace. It has been accepted for inclusion in Pace Environmental Law Review by an authorized administrator of DigitalCommons@Pace. For more information, please contact [email protected]. ARTICLES BY PROFESSOR JOHN R. NOLON In Praise of Parochialism: The Advent of Local Environmental Law Copyright (c) (2002) by the President and Fellows of Harvard College and the Harvard Environmental Law Review JOHN R. NOLON* 1. INTRODUCTION National environmental policy emphasizes the central role of the federal government as the standard-setter and steward of a healthy environment. This focus on the responsibility of the na- tional government and its various and uneven collaborations with the states has all but obscured the role of local governments in environmental protection. 1 While federal agencies have success- fully reduced pollution that emanates from "point sources," such as smoke stacks and water pipes, most environmental damage to- day is caused by "nonpoint source" pollution resulting from land 2 uses that are the legal responsibility of municipal governments. Federal attempts to influence local regulatory prerogatives have been thwarted by a variety of legal, political, and practical obstacles. Meanwhile, there has been a remarkable and unnoticed trend among local governments to adopt laws that protect natural re- sources. These local environmental laws take on a number of * This is a slightly abridged version of an article that originally appeared in 26 HARv. ENVTL. L. REV. 365 (2002). I would like to thank Kristen Kelley for her invalu- able research assistance. 1. By local government, municipal government, locality, or municipality, this Ar- ticle means any incorporated city, town, village, borough, county, or other governmen- tal entity smaller than a state that has been delegated authority to regulate the use of land in the public interest. 2. See infra note 19 and accompanying text. 705 1 706 PACE ENVIRONMENTAL LAW REVIEW [Vol. 23 forms. They include local comprehensive plans expressing envi- ronmental values, zoning districts created to protect watershed areas, environmental standards contained in subdivision and site plan regulations, and stand-alone environmental laws adopted to protect particular natural resources such as ridgelines, wetlands, floodplains, stream banks, existing vegetative cover, and forests. The purposes of these laws are to preserve natural resources from the adverse impacts of land development and to control nonpoint source pollution. In inventing these controls, local governments have creatively used a variety of traditional and modern powers that their state legislatures have delegated to them. This powerful trend at the grassroots level of environmental policy-making presents an opportunity to revisit the national ap- proach to environmental protection and to create a more inte- grated system that incorporates the historical function of local governments in protecting the public from the perils of pollution and environmental degradation. This Article explains the role that local governments have as- sumed in protecting the environment, explores the means by which they have obtained their authority to do so, and discusses how this enhanced municipal role should influence environmental and land use policy at the federal and state levels. Part II reviews federal efforts to control nonpoint source pollution, and identifies the constraints on federal action. Among these constraints is the national understanding that the power to control the private use of land is a state prerogative, one that has been delegated, in most states, to local governments. Part III describes how the traditional authority of localities to control land use has evolved to incorpo- rate environmental protection standards, and how local land use agencies apply and enforce those standards. In Part IV, the vari- ous methods that state legislatures and courts have used to dele- gate and expand the authority of local governments to protect the environment are explored, explained, and analyzed. This Part demonstrates that the importance of controlling environmental degradation at the local level has led states to expand the range of matters that may be regulated under traditional land use author- ity, home rule powers, and special purpose statutes. Part V sum- marizes empirical research regarding local environmental laws and provides detailed illustrations of the various types of protec- tions that municipalities have adopted. Part VI makes the case that local governments, despite their much-lamented limitations, should be full partners of the state and federal governments in the http://digitalcommons.pace.edu/pelr/vol23/iss3/6 2 2006] IN PRAISE OF PAROCHIALISM 707 critical matter of environmental protection. Part VII argues that the advent of local environmental law is a natural and healthy response of the legal system to environmental exigencies, precipi- tated in part by the inertia experienced at the federal level, and that it is time to change federal and state policy to reinforce and utilize this powerful new grass-roots force. II. FEDERAL EFFORTS TO CONTROL NONPOINT SOURCE POLLUTION While local governments have been working to adopt laws of their own invention to control nonpoint source pollution, federal agencies, working toward the same objective, have attempted to influence local land use decisions using a variety of strategies. This is particularly evident in the efforts of the Environmental Protection Agency ("EPA") to control air and water pollution. Early attempts by EPA to reduce air pollution by intervening in local development matters were recognized as a threat to the power of the states to control land use, secured by the Tenth Amendment. 3 These attempts were met with amendments to the Clean Air Act in 1977 that expressly prohibited federal require- ments aimed directly at land use control. 4 The 1977 Clean Air Act Amendments were not an isolated ex- ample of the reluctance of the federal government to interfere with the plenary land use authority of the states. At the inception of the era of federal activism in environmental protection, Senator Henry Jackson proposed the adoption of a National Land Use Planning Act as a bookend to the National Environmental Policy Act, to integrate federal, state, regional, and local land use plan- ning. This federal land use act was narrowly defeated in the House of Representatives in 1974, in part because it was regarded as an assault on the independent authority of the states to control land use.5 More recently, the efforts of the Army Corps of Engi- neers to prevent the construction of a landfill by a consortium of municipalities in the Chicago area were struck down by the U.S. Supreme Court. In Solid Waste Agency of Northern Cook County v. 3. The Tenth Amendment provides as follows: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." U.S. Const. amend. X. 4. See 42 U.S.C. § 7431 (1994) (stating that "[niothing in this chapter constitutes an infringement on the existing authority of counties and cities to plan or control land use, and nothing in this chapter provides or transfers authority over such land use"). 5. See John R. Nolon, National Land Use Planning:Revisiting Senator Jackson's 1970 Policy Act, LAND USE L. & ZONING DIG., May 1996, at 5. 3 708 PACE ENVIRONMENTAL LAW REVIEW [Vol. 23 United States Army Corps of Engineers,6 the Court held that the Army Corps lacked jurisdiction under the Clean Water Act to reg- ulate development in intrastate, non-navigable waters solely on the basis of the presence of migratory birds. 7 The jurisdictional limits of federal agencies to protect the environment, resting in part on the Interstate Commerce Clause of the federal Constitu- tion, were at issue in this case. Such jurisdictional limits, of course, do not constrain state governments or their localities in regulating wetland disturbances or other private land uses. These jurisdictional, constitutional, and political obstacles have redirected federal energies from regulating land use to influ- encing state land use regulation. The Clean Water Act provides states with federal funds to encourage land use planning to pre- vent nonpoint source pollution.8 State and local governments are encouraged under the federal Coastal Zone Management Act to adopt plans to preserve coastal areas. 9 Federal financial aid is denied for developments in sensitive coastal areas under the Coastal Barrier Resources Act. 10 The modification of habitats that may harm endangered species is prohibited under the Endan- gered Species Act ("ESA") unless the modification is allowed by a permit issued pursuant to an approved habitat conservation plan." 6. 531 U.S. 159 (2001). 7. Id. at 171. 8. 33 U.S.C. § 1281(g)(1) (1994). 9. The Act provides grants to coastal states to develop management programs for their coastal zones. 16 U.S.C. 88 1451-1465 (1994). State programs must meet sev- eral requirements, including providing for management of land uses having a signifi- cant impact on coastal waters and making a clear statement of which agencies and officials are to take action to implement the program. See Linda A. Malone, The Coastal Zone Management Act and The Takings Clause in the 1990's: Making The Case for Federal Land Use to Preserve Coastal Areas, 62 U. COLO. L. REV. 711, 727 (1991) (stating that "[if] the requirements for state programs were more specific, the CZMA could come close to the most controversial form of land control-federal land control.